Fletcher v Keatley

An appellate court should not interfere with a trial judge’s findings on injury, expert evidence or damages unless they are plainly wrong. Where a claimant has suffered genuine injury but has also exaggerated symptoms, the proportionate course is to assess liability and quantum fairly, exclude loss caused by exaggeration, and use costs or other sanctions where appropriate. Striking out is a draconian last resort. A pragmatic assessment is permissible where genuine and non-genuine elements cannot be separated precisely. Once appointed, a litigation friend remains in office until ended by court order under Civil Procedure Rules 1998 r 29.9(2).

Anthony Keatley claimed damages from Carl Fletcher for personal injury sustained as a front-seat passenger in a motor accident. Liability was admitted, but quantum was disputed because the appellant alleged that continuing symptoms and losses were exaggerated. HHJ Main QC, sitting in the Manchester County Court and Family Court, awarded damages and interest on 13 April 2016. The appeal challenged the findings on continuing psychological injury, the refusal to strike out the claim as an abuse of process, several heads of loss, and the respondent’s capacity to litigate. The central issue was whether the judge had made an appealable error in assessing genuine injury alongside deliberate exaggeration.

The appeal was dismissed.

1. Appellate restraint. The court approached the challenges to the trial judge’s findings on injury, expert evidence and consequential loss on the basis that interference required the findings to be plainly wrong: Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 53 and Henderson v Foxworth [2014] UKSC 41. The judge was entitled to prefer the evidence of Dr Scheepers and Dr Kemp, and his reasons were adequate when read as a whole. The judgment set out the competing expert opinions and made clear why the preferred evidence was accepted.
2. Exaggeration and abuse of process. Applying Summers v Fairclough Homes Ltd [2012] UKSC 26, the court held that striking out a claim is a draconian last resort. Where genuine injury and loss can still be assessed fairly, the proper course is to award damages for the genuine consequences, remove loss attributable to deliberate exaggeration, and use costs or other sanctions where appropriate. The judge was entitled to retain the claim despite the deliberate component of the respondent’s presentation. Where the evidence did not permit precise separation of genuine and non-genuine effects, a pragmatic percentage deduction was permissible. Kelly v Churchill [2007] RTR 26 was treated as an example of the exercise of procedural powers rather than as a governing statement of principle.
3. Loss and treatment. The awards for the rehabilitation assessment and future psychological treatment were properly made. The assessment was a proper step in understanding the mixed causes of the respondent’s presentation, and the recommended treatment remained necessary despite having been delayed or previously rejected.
4. Capacity. Under Civil Procedure Rules 1998 r 29.9(2), a litigation friend’s appointment continues until ended by court order, even if the protected party later regains or acquires capacity. The evidence supported the inference that the respondent lacked capacity when proceedings were issued, so the proceedings had been properly authorised.

The trial judgment and orders, including the damages and costs consequences, therefore stood.

1. Court of Appeal (Civil Division) In [2017] EWCA Civ 1540, the court dismissed the appeal from the order of HHJ Main QC.
2. Manchester County Court and Family Court On 13 April 2016, HHJ Main QC entered judgment for the respondent for damages and interest totalling £65,246.94, with orders as to costs.
3. Permission to appeal Permission, refused by the trial judge, was granted by Jackson LJ on 18 October 2016.